Punjab-Haryana High Court
Krishan And Anr. vs State Of Haryana on 21 January, 2005
Equivalent citations: 2005CRILJ1909
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This appeal has been filed by the appellants against the judgment and order dated 3/4-12-2003 vide which the appellants were convicted and sentenced to undergo life imprisonment with a fine of Rs 10,000 under Section 302 read with Section 34, IPC. In default of payment of fine, the defaulter was further sentenced to undergo RI for one year. Accused Krishan was further sentenced to undergo RI for one year and to pay a fine of Rs. 1000/- under Section 25 of the Arms Act. In default of payment of fine, he was further sentenced to undergo RI for three months. However, both the sentences were ordered to run concurrently.
2. The prosecution case, in brief, is that on 12-1-2000 Bijender along with Balraj and Satbir were going from Sonepat to Gannaur in a bus. Since the bus was overcrowded, Bijender and Satbir sat on the roof. The bus reached village Kami at 3 p.m. and Bijender and Satbir alighted from the bus. Balraj who was inside the bus had an alteration with Krishan and one more youth, whose name was not known. All the three were exchanging expletives. In the meantime, Krishan took out a knife from his pocket and attacked Balraj, who was caught hold by Krishan's companion. Bijender intervened to save Balraj but Krishan gave another knife blow on the back of Balraj due to which he fell down and the assailants ran away from the spot. On the statement of PW-8, Bijender, FIR against the accused was got registered. After completion of investigation, challan against the accused was presented.
3. They were charged under Section 302 read with Section 34, IPC. Krishan, accused, was also charge-sheeted under Section 25 of the Arms Act. However, they pleaded not guilty and claimed trial.
4. To prove the case, the prosecution examined PW-1 Rajbir Singh, PW-2 Kuldeep Singh, HC, PW-3 Bijender Singh, Constable, PW-4 Laxmi Narain, Constable, PW-5 Giri Raj Singh, PW-6 Mrs. Poonam Suneja, JMIC, PW-7 Dr. R.K. Kataria, PW-8 Bijender, PW-9 Naresh Kumar, Patwari, PW-10 Suresh Kumar, PW-11 Hari Singh, PW-12 Ranbir Singh, Retired Inspector and PW-13 Satbir.
5. The accused were examined under Section 313, Cr. P.C. to explain the incriminating circumstance appearing in the prosecution evidence. They pleaded innocence and alleged false implication. Accused Krishan took the following plea :--
"I am innocent. I have not committed offence as alleged. The allegations levelled against me are totally false and fictitious. The story as mentioned in the FIR is totally made up one only to involve me in the abovementioned case. My name has been involved due to rivalry between the villagers."
6. The learned trial Court, after hearing the defence counsel and learned PP for the State found the appellants guilty and convicted and sentenced them vide judgment and order dated 3/4-12-2003 as stated in paragraph 1 of the judgment, against the present appeal has been filed.
7. Mr. R.S. Ghai, Senior Advocate, along with Mr. Ashit Malik Advocate, appearing for the appellant, submitted that the learned lower Court has not appreciated the evidence on record in its right perspective. They submitted that the learned trial Court has convicted and sentenced the appellants on the basis of conjectures and surmises, even though there was no evidence on the record to connect the appellants with the crime. They also submitted that PW-8 Bijender Singh was the eye-witness as well as complainant in this case while PW-10 Suresh Kumar was the another eye-witness. However, both have not supported the case of the prosecution. PW-11 Hari Singh was the alleged witness to the recovery of knife from Krishan, appellant but he has not supported the case of the prosecution qua Dinesh. They contended that the alleged knife recovered on the statement of Krishan was sent to Forensic Science Laboratory but there is no report of Serologist that the knife recovered from the appellant was stained with human blood. They further submitted that the recovery of knife was planted by the prosecution to strengthen the case against the appellants.
8. After hearing learned counsel for the appellants and perusing the record, we are of the considered view that there are no merits in these submissions.
9. It is settled proposition of law that the evidence of a hostile witness is admissible to that extent which supports the case of the prosecution. The entire statement of a hostile witness cannot be discarded. In Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 : (1976 Cri LJ 203 at P. 204), it has been observed as under :--
"That the fact that the witness was declared hostile did not completely efface his evidence, it remained admissible in the trial. Since his testimony was corroborated by other evidence, there was no legal bar to base his conviction upon it."
10. In Sat Paul v. Delhi Administration, AIR 1976 SC 294 : (1976 Cri LJ 295 at P. 309), it has been held as under :--
"Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should as a matter of prudence discard his evidence in toto."
11. Similar view has been taken in Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210 : (2000 Cri LJ 408).
12. In view of the law laid down by the Apex Court, it is to be seen whether the learned Additional Sessions Judge has committed any legal error in appreciating the evidence.
13. The case of the prosecution hinges upon the statements of PW-8 Bijender Singh. PW-10 Suresh Kumar, who are the eye-witnesses of the occurrence and PW-11 Hari Singh in whose presence the knife was recovered from Krishan. Bijender Singh was examined in the Court on 7-11-2000. His examination-in-chief was recorded. However, when the cross-examination was almost complete, then suddenly, counsel for the appellants in the trial Court, Shri B.K. Tyagi, made a statement that he had become ill and on his request, further cross-examination was deferred and the case was adjourned to 16-1-2001 for the remaining evidence. On the adjourned date, no PW was present and case was adjourned to 19-2-2001. On the said date, the learned Sessions Judge was on leave and the case was adjourned to 23-2-2001 and thereafter to 8-5-2001. On 8-5-2001, one PW was examined but another PW Balwant Singh could not be examined as recording of his evidence was objected by the counsel for the appellant. Balwant Singh, PW, was therefore, discharged. The case was then adjourned to 3-8-2001. On 3-8-201, counsel for appellant, Krishan, appeared and brought to the notice of learned Sessions Judge that Krishan had been allowed interim bail by the learned Additional Sessions Judge on 19-7-2001 during vacation and he was to surrender on 26-7-2001. However, appellant-Krishan did not surrender and his ball bonds and surety bonds were forfeited and he was summoned through warrant of arrest for 22-8-2001. Later on, Krishan, appellant, was declared proclaimed offender on 26-11-2001. PW-8 Bijender Singh was recalled for cross-examination on 13-12-2002. In his cross-examination, he resiled from his statement Ex. PB on the basis of which FIR was registered as well as from the statement recorded in the Court on 7-11-2000. When he was confronted with his statement Ex. PB on the basis of which, FIR was registered, he gave an explanation that his signatures were obtained on blank paper by the police. Regarding the statement made by PW-8 Bijender Singh in Court on 7-11-2000, he gave an explanation that the previous statement made by him before the Court was under the police pressure. When he was confronted with his statement Ex. PB, Bijender Singh admitted his signatures on it but denied its contents. At the time of recording statement of Bijender on 7-11-2000, he has not given any explanation that his signatures were obtained on blank paper by the police and its contents were not read over to him. PW-6 Bijender Singh has not made any complaint to the higher police officers or to the court that his signatures had been obtained on blank papers.
14. The explanation given by PW-8 Bijender that he made statement in the Court on 7-11-2000 under police pressure is not believable because he has not given the name of any police official who has pressurized him to make the statement in the Court against the appellants. Bijender Singh was again cross-examined on 28-8-2003. He resiled from his statement made before the police as well as before the Court on 7-11-2000. He was again duly confronted with his statements.
15. The Court cannot overlook the fact that PW-8 Bijender had resiled from his statement when appellant-Krishan was absconding. PW-8 Bijender resiled either under threat or was won over under pressure or for monetary gain.
16. Therefore, it shows that the statement made by PW-8 Bijender on 7-11-2000 was voluntary, truthful and it was only during the cross-examination that he resiled from his previous statement made before the Court intentionally and purposely to screen the appellants from legal punishment, for the reasons best known to him.
17. Bijender Singh was again cross-examined on 28-8-2003. He resiled from his statement made before the police as well as before the Court on 7-11-2000. He was again duly confronted with his statements.
18. When a witness resiles from his previous statement made in the Court, the only requirement of law is that the witness is to be confronted with his previous statement made before the Court as provided in Section 145 of the Indian Evidence Act, 1872.
19. In the instant ease, PW-8 Bijender was duly confronted with his statement made before the Court on 7-11-2000. So the said statement is admissible in evidence.
20. Mr. R.S. Ghai, learned senior counsel for the appellants tried to distinguish the case of Dinesh from Krishan and submitted that no part has been attributed to Dinesh by Bijender except that he had caught hold of the deceased. He submitted that Dinesh was not aware that Krishan was having a knife with him with which he allegedly gave injuries to the Balraj deceased.
21. We have considered this submission of learned counsel for the appellant but find the same without any foundation.
22. As per P.W. 8 Bijender, on 12-1-2000 at about 3 p.m. he along with Satbir alighted from the roof of the bus at bus stand of village Kami. Krishan and Dinesh also alighted from the bus with Balraj. There was an altercation between Krishan and Balraj. Dinesh caught hold Balraj whereas Krishan gave knife blow. It has come in the cross-examination of Bijender that accused were residents of village Rajpur which is at a distance of 4 kms. from village Kami. There is another village named Bhuri in between the two villages. There was ho need of the appellants to alight from the bus at bus stop of village Kami whereas they were residents of village Rajpur, which was 4 kms. away from the bus stop of village Kami. It shows that the appellants Krishan and Dinesh had intentionally alighted from the bus at village Kami to cause injuries to Balraj.
23. The statement of P.W. 8 Bijender has been further corroborated by circumstantial evidence. Inspector Ranbir Singh P.W. 12 deposed that on 16-1-2000, he interrogated accused Krishan who made disclosure statement Ex. PL that he kept concealed the knife, with which he inflicted injuries on the person of Balraj, in the chhubbara of his house in the guilt on the cot about which only he knew and he could get it recovered. In pursuance of the said disclosure statement, accused Krishan got recovered the knife from his house. The same was taken in to possession vide recovery memo Ex. PL/1. His statement has been fully corroborated by P.W. 11 Hari Singh. Hart Singh P. W. 11 and Ranbir Singh P.W. 12 have been cross-examined by the defence at length, but it failed to make any dent in their statements. Rather from the evidence of P.W. 11 Hari Singh and P.W. 12 Inspector Ranbir Singh, it established that on the disclosure statement of Krishan, knife Ex. P1 was recovered. The knife was sent to Forensic Science Laboratory, Madhuban and traces of blood were detected on the knife Ex. P1 but those were too small for serological tests.
24. The version given by P.W. 8 Bijender finds corroboration from medical evidence given by P.W. 7 Dr. R.K. Kataria. He has conducted the post-mortem examination on the dead body of Balraj and found 6 incised wounds on his person. The cause of death in the opinion of doctor was shock and haemorrhage due to the injuries which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Dr. Kataria has specifically deposed that the injuries on the person of deceased Balraj could be caused by knife Ex. P1.
25. There was strong motive on the part of the appellants to cause injuries to Balraj. As per P.W. 8 Bijender, deceased Balraj had told him prior to the occurrence as well as after receiving the injuries that the fight had taken place because there was previous enmity between Balraj and Krishan as Krishan has molested a girl at the bus stand.
26. From the evidence on record, it is abundantly proved that Krishan and Dinesh with their common intention alighted from the bus at bus stop of village Kami. Dinesh caught hold deceased Balraj whereas Krishan gave injuries to him with knife as a result of which Balraj had died. Therefore, the learned Additional Sessions Judge has not committed any legal error in appreciating the evidence on record and has rightly convicted and sentenced the appellants Krishan and Dinesh.
27. For the reasons recorded above, we find no merit in this appeal. The same is dismissed.
28. However, before parting with the judgment, it has become necessary to issue notice to P.W. 8 Bijender who was the complainant in this case and he has tried to screen the appellants from legal punishment by resiling from his statement made in the Court on 7-11-2000. Therefore, a show cause notice is issued to P.W. 8 Bijender Singh to explain as to why a complaint be not lodged against him for committing the offence of perjury. He is directed to appear in this Court on 7-2-2005.